Critics give court their arguments to nix net neutrality rules

The net neutrality battle is hitting a new phase after critics trying to kill the new rules finished drafting their court arguments this week.  

Oral arguments at the U.S. Court of Appeals for the D.C. Circuit have been slated for Dec. 4, setting up a decision perhaps by early spring. 

{mosads}About a dozen amicus briefs were submitted by a Thursday deadline, urging the court to strike down the Federal Communications Commission’s new rules that reclassify broadband Internet.

The FCC and those supporting the new rules will have until mid-September to respond. A second round of replies will be due in early October. The three-judge panel that will hear the case will not be named until 30 days before oral arguments.

The controversial rules — despised by Republicans and Internet service providers — set off a flurry of lawsuits when they took effect in June. Republicans in Congress have sought to use the budget process to stifle the rules, but most critics believe the courts are their best option. 

The rules reclassify broadband Internet as a telecommunications service, which grants the FCC increased authority to regulate conduct. The agency believes the reclassification gives it firm footing to enforce rules to prevent Internet service providers such as AT&T or Comcast from prioritizing any piece of Internet traffic above another. 

A number of high-profile groups this week put their backing behind the telecom trade groups and Internet service providers who are challenging the new rules. 

The Chamber of Commerce, the Business Roundtable and the National Association of Manufacturers submitted a brief to the court, arguing the Internet market is not the monopoly that requires the increased regulation, which had until now been reserved for telephone service. 

A number of economists told the court the commission failed to properly weight the costs and benefits of the reclassification and avoided applying widely accepted economic principles. They also argued the commission overstated the benefits of the new rules. 

Tech Freedom and others put forward a more legal argument, saying Congress did not grant the agency the authority to reclassify Internet access, nor was it given interpretive authority to make such a significant decision. 

Others, including the Center for Boundless Technology, used a more novel approach, arguing the rules raise First Amendment concerns. The group said that in the eyes of the law, a broadband provider should be treated no differently than a printing press, newspaper, broadcaster or cable operator. 

The FCC and supporters of the new rules are sure to push back hard when they submit their own arguments to the court next month. They are coming off a small victory June, when the court declined to put the rules on hold. But that does not predict a win when the challenge is decided on the merits next year.